Megan Johnson
In October 2024, Australia’s Northern Territory government passed legislation to lower the age of criminal responsibility from 12 years-old to 10 years-old.[1] This change in law makes it so that children between the ages of 10 and 14 can be held criminally responsible if the prosecution is able to prove that the child knew the conduct was wrong.[2] This is a clear backtrack for children’s rights in Australia.[3]
Reducing the minimum age of criminal responsibility to 10 is a direct violation of international recommendations.[4] In 2007, the United Nations Convention on the Rights of Children (“UNCRC”) issued a General Comment expressing concern over States that use a low age for criminal responsibility, especially when the child has been accused of committing a serious crime.[5] The UNCRC recommended that the minimum age should not be lower than 12.[6] In 2019, the UNCRC raised the recommended minimum age to 14.[7] The 2019 report emphasized that when deciding culpability, courts should regard children as the age they were when the alleged crime was committed when deciding criminal responsibility.[8] When the child’s age at the time of offense cannot be determined to have been below or above the minimum age of criminal responsibility, it should be assumed that the child is below the minimum age.[9]
Now, when children under the age of 10 commit an act, they will not be held criminally liable; however, if it is a violent act or theft, counselors and parents should discipline the child to teach them proper behavior.[10] Human Rights Watch suggests that alternatives to criminal enforcement for children include probation, mediation, counseling, community service, and semi-open facilities, if necessary, that allow children to attend public schooling.[11]
The change in the age of criminal responsibility in the Northern Territory risks having disparate impacts on certain portions of the population. In a report on the conditions of children, the Australian government noted that Indigenous youth make up 43% of the entire youth population; however, they represent 95% of the youth in detention.[12] Indigenous children are more likely to be arrested, be refused bail, and have their matter referred to court than non-Indigenous children.[13] Trends also show that young males are most at risk of being held in detention.[14]
While children develop the notion of right and wrong at a young age, this skill develops throughout childhood, leaving young children unable to understand the moral condemnation associated with criminal responsibility.[15] The children who are impacted by this change in law are likewise at a disadvantage developmentally, as those who are arrested before 14 are three times more likely to re-offend than those arrested after 14.[16] This creates a cycle of recidivism—especially for Indigenous children who face increased adversity—since they tend to experience lower levels of education and employment when reentering the community.[17]
Moreover, the Northern Territory’s change in policy regarding the minimum age of criminal responsibility has been coupled with the reinstating of the use of “spit hoods” in youth detention facilities following a 2016 ban.[18] Spit hoods are used during arrests and in detention facilities to prevent the transmission of communicable diseases through spitting or biting; however, it has been found that spit hoods increase risks of injury or death, whereas the risk of disease transmission is low.[19] Australia’s National Children’s Commissioner, Anne Hollands, has stated that the use of spit hoods for children is a deprivation of their liberty, specifically because these children are already experiencing trauma, cognitive disabilities, and mental health disorders.[20]
Despite calls from national organizations and Commissioner Hollands to reform “tough-on-crime” policies for children, the Northern Territory government will likely continue to implement policies that restrict the rights of children.
[1] Annabel Hennessy, Australia Jailing Children as Young as 10: Northern Territory Lowers Age of Criminal Responsibility, Hum. Rts. Watch (Oct. 21, 2024) https://www.hrw.org/news/2024/10/21/australia-jailing-children-young-10; Criminal Code Act 1983 (NT) s 38A (Austl.).
[2] Criminal Code Act 1983 (NT) s 38A (Austl.).
[3] Committee on the Rights of the Child, Children’s Rights in Juvenile Justice, ¶ 33, U.N. Doc. CRC/C/GC/10 (Apr. 25, 2007); Hennessy, supra note 1; Anabel Bowles, NT’s CLP Government Passes Legislation to Lower the Age of Criminal Responsibility from 12 to 10, in First Week of Parliament, ABC News (Oct. 17, 2024) https://www.abc.net.au/news/2024-10-18/nt-parliament-lowers-age-of-criminal-responsibility-to-10-law/104480034.
[4] Children’s Rights in Juvenile Justice, supra note 3, ¶ 30.
[5] Id. at ¶ 32–33.
[6] Id.
[7] Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, ¶ 22, U.N. Doc. CRC/C/GC/24 (Sept. 18, 2024).
[8] Id. at ¶ 20.
[9] Id. at ¶ 24.
[10] Fernanda Dahlstrom, The Age of Criminal Responsibility (NT), Go to Court https://www.gotocourt.com.au/criminal-law/nt/age-criminal-responsibility/ (last visited Nov. 16, 2024).
[11] Hum. Rts. Watch, Children Behind Bars: The Global Overuse of Detention of Children https://www.hrw.org/world-report/2016/country-chapters/africa-americas-asia-europe/central-asia-middle-east/north#9672f8 (last visited Nov. 16, 2024).
[12] Austl. Inst. Health & Welfare, Youth Justice in Australia 2021-22 (Mar. 31, 2023) https://www.aihw.gov.au/reports/youth-justice/youth-justice-in-australia-2021-22/contents/state-and-territory-fact-sheets/northern-territory.
[13] Yolisha Singh, Old Enough to Offend But Not to Buy a Hamster: The Argument for Raising the Minimum Age of Criminal Responsibility, 30 Psychiatry, Psych., & L. 51, 56 (2023).
[14] Austl. Inst. Health & Welfare, supra note 12 (“87% of those under supervision were male.”).
[15] Singh, supra note 13, at 53.
[16] Id. at 57.
[17] Id.; Sara S. Hildebrand, Reviving the Presumption of Youth Innocence Through a Presumption of Release: A Legislative Framework for Abolition of Juvenile Pretrial Detention, 125 Penn. St. L. Rev. 695, 697 (2023); Youth.Gov, Youth Involved with the Juvenile Justice System https://youth.gov/youth-topics/juvenile-justice/youth-involved-juvenile-justice-system#_ftn (last visited Nov. 16, 2024); Austl. Hum. Rts. Comm’n, NT Government Urged Not to Lower Age of Criminal Responsibility (Oct. 11, 2024) https://humanrights.gov.au/about/news/nt-government-urged-not-lower-age-criminal-responsibility (explaining that the National Children’s Commissioner believes this will cause risks of recidivism and adverse effects for these children).
[18] Hennessy, supra note 1; Austl. Associated Press, Spit Hoods to be Used on Northern Territory Children Again as Ban Ends, Police Chief Confirms (Oct. 14, 2024) https://www.theguardian.com/australia-news/2024/oct/14/northern-territory-spit-hood-ban-lifted-clp-ntwnfb.
[19] austl. Hum. Rts. Comm’n, Commission Welcomes Banning of Spit Hoods by AFP (Apr. 14, 2023) https://humanrights.gov.au/about/news/media-releases/commission-welcomes-banning-spit-hoods-afp.
[20] Id.